Inquiry The inquiring lawyer, who is both a practicing lawyer and an ordained minister, has been working as a mediator in domestic relations for the Multi-Door Dispute Resolution Division of the Superior Court and as an arbitrator for the Attorney-Client Arbitration Board of the D.C. Bar. She proposes starting a private law practice that would in several respects go beyond her current mediation work. Under her proposal, she would establish a client-lawyer relationship with both spouses. As part of undertaking joint representation, the inquirer would provide legal information and limited legal advice to both spouses. At the same time, she intends to play an active role in helping the parties reach a detailed divorce agreement, which would cover such issues as property distribution, spousal support, child custody, and child support. Her role would include proposing solutions designed to advance the mutual interests of both parties, as she currently does in her mediation work. The inquirer further proposes drafting and filing the necessary agreements and representing both spouses before the Court.

The inquirer states that she would carry out the joint representation under the safeguards of Rule 2.2 of the D.C. Rules of Professional Conduct and the guidelines set forth in our Opinion No. 143 (1984), in the following manner. She would represent these clients solely in connection with the mediated divorce. She would undertake joint representation only after determining that each spouse is capable of making adequately informed decisions and that the matter can be resolved on terms compatible with the best interests of both clients. After providing the clients with a written explanation of the risks of joint representation and of the circumstances that might later cause separate representation to be necessary or desirable, she would obtain their informed written consent. The inquirer would withdraw from the representation if any of the above conditions ceased to be satisfied or if either client requested her to do so. Thereafter, she would not represent either of the clients in connection with the divorce or any other matter. At all times the clients would retain the right to seek their own private attorney to review the agreement.

Discussion Opinion No. 143, decided under the former D.C. Code of Professional Responsibility, represents the only time this Committee has directly considered the issue of joint representation in divorce. In that opinion, we stated that “[a]s a general rule joint representation of a couple seeking a divorce is not ethically permissible,” but nevertheless held that it was permissible under the limited and specific facts presented in that inquiry. The specific facts in that inquiry involved a divorce where the spouses had comparable employment status, salaries, and educational backgrounds; where no children were involved; and where the parties had already agreed upon a division of property and “all other substantial settlement terms before retaining counsel” (emphasis added). Assistance of counsel was sought solely for the purpose of implementing the couple’s preexisting agreement.1

In several respects, the current proposal goes well beyond the joint representation permitted under Opinion No. 143. First, although the lawyer intends to represent only couples “contemplating a non-contested divorce,” she does not intend to restrict her practice to couples who have already agreed upon a division of property and all other substantial issues before retaining her. Second, she seeks to represent couples with children as well as those without children. Third, she does not intend automatically to decline representation when the spouses have disparate employment status, salaries, and educational backgrounds, so long as both are able to make adequately informed decisions. In short, she proposes to undertake joint representation whenever the parties, despite different interests and views, seek to arrive at a non-contested divorce settlement.

Although Opinion No. 143 never stated that joint representation was unethical whenever the circumstances depart from the specific facts outlined in that inquiry, the opinion certainly suggests that joint representation in divorce cases is usually impermissible. We think that the Opinion’s reasoning clearly precludes joint representation of husband and wife in the broad range of circumstances envisioned by the inquiry. We turn our attention, then, to whether the D.C. Rules of Professional Conduct—in particular Rule 2.2, a new rule on intermediation that had no counterpart in the Code—so significantly change the governing law as to permit joint representation of husband and wife in divorce cases in the broad range of circumstances she contemplates. For the reasons stated below, we hold that they do not.

It must be emphasized at the outset that the Rules of Professional Conduct preserve and reinforce basic ethical standards about representation of parties with adverse interests. Rule 1.7(a) bars absolutely a lawyer’s representation of clients with respect to adverse positions in the same matter.2 On its face, the Rule would appear to prevent joint representation of a divorcing husband and wife who seek assistance in reconciling their differing interests and positions. And Comment [6] to Rule 1.7, noting that the absolute bar of Rule 1.7(a) applies only where there is an actual, as opposed to a nominal, adversity in the positions of the clients, cites Opinion No. 143 as setting forth “the limited circumstances” in which Rule 1.7(a) “would not preclude the representation of both parties in an uncontested divorce proceeding.”

To be sure, Comment [6] to Rule 1.7 does not refer explicitly to Rule 2.2. And Rule 2.2 envisions a lawyer, in appropriate circumstance, acting as an intermediary between two clients with potentially conflicting interests. See Comment [1]. Where this is the case, Rule 2.2 permits common representation if the lawyer “reasonably believes” that she can represent both clients “impartially” and that their potentially conflicting interests can be resolved on terms compatible with both clients’ best interests.3 In making this determination, the lawyer may proceed if all clients, after being fully informed, believe that they will secure greater overall benefit by choosing to develop mutual interests (perhaps at the cost of not exercising all their legal rights to the fullest) and if the lawyer reasonably believes that common representation will be successful in accomplishing this goal.

There are substantial reasons for caution, however, in approaching the question of whether Rule 2.2 permits joint representation in divorce cases in a broader range of circumstances than allowed in Opinion No. 143.

First, as already noted, the D.C. Court of Appeals, in Comment [6] to Rule 1.7(a), emphasized the “limited circumstances,” described in that Opinion, in which Rule 1.7(a) permits joint representation in an uncontested divorce. Whether, as a matter of law, that Comment forecloses an interpretation of Rule 2.2 as permitting joint representation of a divorcing husband and wife in any set of circumstances beyond that set forth in Opinion No. 143 is a difficult question we need not resolve in the context of this Inquiry.

Second, we believe that Rule 2.2 was not drafted with divorce cases in mind. The Comment to the Rule never mentions divorce as an example of the situations in which the Rule might apply. Moreover, although the language of the Comment is not entirely free of ambiguity, we think that the Rule’s approach to common representation is basically designed for “joint venture”-type situations. Several paragraphs of the Comment support this view. Comment [3] states that the Rule does not apply at all when the lawyer acts as a mediator between non-clients. Where mediation takes place outside the context of a client-lawyer relationship, the lawyer’s conduct may be subject to other codes of ethics, but it is not subject to Rule 2.2.

Comment [6] states that the appropriateness of intermediation—that is, the standard that must be met before a lawyer can act as intermediary under Rule 2.2—depends on the form that intermediation takes. The Comment thus draws a distinction between arbitration and mediation on the one hand and common representation on the other. In the former, the lawyer may be called upon to help resolve a dispute between existing clients without representing them and advising them with respect to the subject matter at issue. In arbitration, the lawyer may even decide the outcome after each client presents its case to the lawyer. In common representation, however, the lawyer represents the clients with respect to the subject matter at issue and thus has a wider range of duties to the clients. In particular, a lawyer commonly representing multiple clients still has a duty to be an advocate and advisor for each client. As stated in Comment [8], a lawyer jointly representing two clients has a duty both to keep each client adequately informed and to maintain confidentiality of information relating to the representation.

Because potential conflicts pose problems most acutely for the lawyer attempting common representation, the Comment to Rule 2.2 suggests that this form of intermediation should only be undertaken for clients whose mutual interests predominate over any apparent divergence of interests. Comment [6], for instance, indicates that the interests of commonly represented clients must be substantially compatible. Comment [7] voices a particular caution against common representation where the impartiality of the lawyer might be questioned. Comment [4] cites as examples several “joint venture”-type situations involving clients who have embarked upon a common goal, such as establishment of a new business or a financial organization. Although Comment 4 does refer to “mediating a dispute between clients,” in context we think that this refers to disputes between pre-existing clients within the context of a joint venture of some type.

Third, it is important to remember that the Rules, like the Code, give expression to certain essential features of the client-lawyer relationship that cannot be dispensed with, even with a client’s informed consent. As the Comment to Rule 2.2 reflects, a lawyer jointly representing divorcing spouses may not play an active role in the resolution of issues between them without running a high risk of failing to live up to the responsibilities the lawyer has to both clients—to advise each of them, to represent their individual interests, and to preserve their confidences. As Comment [8] states, fulfilling these duties while acting as an intermediary requires a delicate balance and can be extremely difficult, even where the clients have reached substantial agreement on all material issues before retaining the lawyer.

These considerations lead us to the conclusion that—at least in the case of divorce—Rule 2.2 does not carve out any significant exception to Rule 1.7. Whether it enlarges the scope for joint representation in divorces at all beyond the “limited circumstances” of Opinion No. 143 is a difficult question we need not resolve here. For there can be no doubt, in our view, that Rule 2.2 does not permit the type of practice that is the subject of this Inquiry—i.e., the joint representation of a divorcing husband and wife who seek assistance in resolving their disagreement as to the terms of the dissolution of their marriage. We believe that such joint representation would place too great a strain on the fundamental duty of loyalty to individual clients that undergirds our ethical rules. Whatever discretion Rule 1.2 gives clients to define the objectives of representation, it does not include the discretion to retain a lawyer under circumstances likely to cause the lawyer to act in ways (or to be perceived to act in ways) detrimental to the client-lawyer relationship.

We emphasize again, however, that a lawyer may act as a mediator for spouses seeking a divorce so long as no client-lawyer relationship is established. Such mediation is not governed by the Rules of Professional Conduct but may be subject to other relevant codes of ethics for mediators or arbitrators. In these circumstances, the lawyer has a duty at the outset to inform all parties that he or she is not establishing a client-lawyer relationship, and consequently that the parties may not assume that the lawyer is under the customary duty to protect their respective individual interests, to preserve their secrets and confidences, and to inform them of all information that may advance their objectives.

Appendix

Rule 2.2 Intermediary
(a) A lawyer may act as intermediary between clients if:

(1) The lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client’s consent to the common representation;

(2) The lawyer reasonably believes that the matter can be resolved on terms compatible with the clients’ best interests, that each client will be able to make adequately informed decisions in the matter, and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and

(3) The lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.
(b) A lawyer should, except in unusual circumstances that may make it infeasible, provide both clients with an explanation in writing of the risks involved in the common representation and of the circumstances that may cause separate representation later to be necessary or desirable. The consent of the clients shall also be in writing.
(c) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.
(d) A lawyer shall withdraw as intermediary if any of the clients so request, or if any of the conditions stated in Paragraph (a) are no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.

2. Rule 1.7(a) provides that “A lawyer shall not represent a client with respect to a position to be taken in a matter if that position is adverse to a position taken or to be taken in the same matter by another client represented with respect to that position by the same lawyer.”

3. The full text of Rule 2.2 is set forth in the Appendix to this Opinion.